IN THE HIGH COURT OF LESOTHO In the matter
MOSUOE MOTEANE JUDGMENT
Delivered by the Hon. Mr Justice M.L. Lehohla on the 8th
day of May, 2000
The accused is charged in two counts with criminal
In Count I he is charged with murder it being alleged by
the Crown that on or about 26th December, 1995 and at or
near Thaba Tseka in the Thaba Tseka district he did unlawfully and
intentionally kill 'Muso Moshoeshoe.
In Count II the accused is charged with attempted murder
in that upon or about 26th December, 1995 he is alleged to
have unlawfully and with intent to kill, shot and
2 wounded Toka Lerotholi at Thaba Tseka in the Thaba
The accused pleaded not guilty to both these counts.
In an attempt to prove its case the Crown led the
evidence of only one witness PW1 Toka Lerotholi while the depositions
of the rest
of the witnesses it sought to lead were admitted by the
accused and his counsel on his behalf.
The evidence of the following witnesses led at the
preparatory examination of this case was admitted; viz
PW2 'MamakhooaLehloenya PW3 'Mantholeng Lekhera PW4
Mohalenyana Moshoeshoe PW5 Trooper Moremoholo PW7 Lesole Lekhanya PW8
Sesheme PW9 Sgt Bebi PW10 Captain Matela
The post-mortem Exhibit A, in respect of Count I, and
the medical report Exhibit B in respect of Count II including
Exhibits C and
D the firearms examiner's
3 report and firearm certificate respectively were all
admitted. Together with the above
witnesses' depositions these were made part of the
record in the instant proceeding.
I should point out that even the evidence of PW1 was
almost entirely admitted but for the portion appearing in the
deposition to the effect that after shooting
the deceased and the deceased had fallen back into the vehicle the
accused said "I
told you that I will kill you".
PW1 was challenged at length by Mr Jefferys for the
defence on this statement but PW1 was adamant that the words were
uttered by the
accused at the relevant time stated. The accused in
turn when giving evidence denied ever uttering such words but was
hard put to
it to explain how then he could recall not saying what he
is said to have said while at the same time the event stated seemed
fall within the time-frame of his black-out. More of this later.
But before getting to that stage my reading of the record and
of the context in which PW1 related his story I was left
with a lasting impression that the accused uttered those words.
The summary of the Crown's evidence which is largely
common cause is that PW1 who is a member of the Lesotho Mounted
had occasion to be
4 travelling in a government vehicle with his colleague
the deceased who was driving
it. This was on 26th December, 1995. The two
were doing patrol duty which had started between 6 a.m. and 7 a.m. on
It was during the course of their patrol duties which
took them to Khalieli that they decided to stop at the junction
leading to Bokong.
Before actually reaching the junction they
observed a white van parked on the side of the road facing Thaba
Tseka township. It was
when the two policemen i.e. the deceased and
PW1 were about to pass the white vehicle that they noticed that the
occupant of this
vehicle wanted to stop them. Thereupon and in
compliance with the perceived wish of the accused they stopped and
reversed their van
to almost a spot opposite the accused.
The accused approached the occupants of the government
vehicle. In his hand he was hold what turned out to be an album
in these proceedings.
The accused asked if the deceased knew this album. It is
significant that the deceased did not answer but instead seemed
to PW1's observation, to be laughing.
5 The accused asked "hey man is this not your
album?" but was vouchsafed no
reply. He inquired and demanded further "where are
my children". To this the deceased said he didn't know where the
children were. The accused made a pointed demand
"Moshoeshoe give me my child". Saying this he took out his
gun. The deceased
tried to drive out of harm's way but got shot on
the chest. Therefrom the vehicle was moving on its own.
PW1 opened a passenger door and had tried to take cover
whilst outside the vehicle but got shot on the buttock.
PW1 had gone to a higher place on the mountain side
about 50 paces away from the vehicle and its remaining occupant when
down and saw the van ditch into a furrow and heard the
deceased as he opened the door say to the accused "Ntate
have killed me for something which you don't know".
The deceased fell back on to the seat of the van while
his feet were protruding outside. It is at this stage that the
are alleged to have been uttered by the accused.
6 The accused called to PW1 to accompany him to the
charge office. But PW1
disobliged him. The accused proceeded to his vehicle
still holding Exhibit "E". Thereupon PW1 went to check on
whom he found breathing hard as well as producing
gurgling sounds in his throat. The deceased was eventually taken to
where he succumbed to his injuries. PW1 himself was
successfully treated for his injury.
Medical evidence collected from the post-mortem report
shows that death was due to (sic) "gun shot chest with
to respiratory failure".
External appearances reflected four gunshot entry wounds
on point of chest on the right and four exit gun shot wounds at the
on the right. There was another gun shot entry wound under the
right part of the chin exiting on front of the chin.
The doctor discovered that the aorta had been severed
and the right lung had collapsed due to gun shot wounds resulting in
PW2 was an occupant of a taxi when she arrived at the
junction leading to Bokong on 26th December, 1995 and she
saw the accused vehicle come and turn to
7 face Thaba Tseka township. Shortly afterwards the
police vehicle came and passed
but the accused tried to stop it by raising his hand.
The police vehicle apparently because it was moving at high speed
distance ahead only to reverse to a spot opposite where
the accused had initially tried to stop it. The accused showed the
a brown book (apparently the album), placed it on the bonnet
of the police vehicle and the two exchanged utterances in a language
that was unfamiliar to PW2 who only heard the accused say "I
want my child" from the deceased. The two were shouting at
other. PW2 saw the accused touch his pocket area and what followed
was a gun report. She said she heard the gun report four
is in contrast to PW1 who said he didn't know how many times the gun
report went. PW2 saw the police vehicle move without
her being able
to discern who could have been driving it. On proceeding to it PW2
saw that PW1 had alighted and gone above the donga.
PW2 didn't know
the source of the quarrel between the accused and the deceased. She
later leamt that the deceased had died.
The evidence of PW3 is more or less on all fours with
that of PW2 except that he heard the gun report three times whereupon
he became confused and ran away.
8 PW4 is the brother of the deceased who learnt of the
deceased's death and
proceeded to the government mortuary at Maseru on 29th
December 1995. The body was transferred to a private funeral parlour
where the post mortem was conducted in PW4's presence. He is
who identified his brother's corpse to the doctor who performed the
The evidence of the rest of the witnesses who testified
at Preparatory Examination merely serves to augment or clarify points
by the witnesses whose evidence I have attempted to summarise
above. To avoid repetition and prolixity it would be beneficial to
proceed to the defence case.
After the Crown had closed its case the accused gave his
evidence followed by that of an expert witness DW2 Mrs Hettie
the psychologist. I may just mention at this stage that
at the conclusion of DW2's evidence the Crown as it was entitled to
leave of Court to adduce rebutting evidence and this was
granted but at the end of the day the Crown did not pursue that
To return to the accused's version: He told the Court
that he is employed by the
9 Ministry of Education at Thaba Tseka as Director of
Thaba Tseka Technical Institute.
He holds a B Ed Honours in Design Craft Technology and
Master of Science in Extension and Technical Education.
The accused studied for his degrees in the University
College of Cardiff in Wales and Tuskegere University in Alabama USA
He is married and has four children.
The accused recalls that the deceased was shot on 26th
The accused gave background to events of 26th
December by referring to events of the previous day. Thus he stated
under oath that on 25th December, 1995 he left his house
in Thaba Tseka at about 9 a.m. for Katse Dam accompanied by his
children and the maid. The purpose
for the visit was largely
sightseeing and taking of photos. Katse Dam is itself famous as a
tourist attraction in this territory.
The party had lunch there.
At the end of that day the accused returned home and
went to bed slightly after 9 p.m. Around midnight the accused's
came to his bed-room and
10 aroused him from his sleep stating that her elder
sister and the maid who share the
same bedroom with her had slipped off and left her on
her own. The accused satisfied himself that this was indeed so, by
check in the bed room in question. He made initial
investigation which led him to conclude that the two females had gone
the front door as he discovered that it was unlocked.
The accused locked the door and took his younger
daughter to sleep. He testified that he got very disturbed by this
In the result he didn't sleep from then on that
When he detected an attempt by someone to open the door
at 3 a.m. the accused immediately rose and went to check. Thereupon
his daughter and the maid running away apparently when they
were surprised by lights being switched on by the accused.
The accused switched off the lights, went back to bed
but an hour or so afterwards he went to his daughters' bedroom and
the bed stead where his eldest daughter sleeps.
There he discovered empty cans of wine; and looking further he found
the album Exhibit
"E" with the photos of the deceased.
The accused then embarked on a strategy with his son
Rataunyane to take two different directions and reconvene 20 minutes
the house in an attempt to locate the whereabouts of the
elder daughter and the maid. Thus when the accused and his son
he learnt that the two females had been seen partying the
night away at some bar in town with the deceased.
The accused then picked up the album and made for the
Deputy Commander's place or office, it matters not which, because the
thought better of that and decided to see first for himself
if he could find his daughter. He thought that if it was possible to
locate her and the deceased from a distance by means of the vehicle
that he knew the deceased to usually drive, thereafter it would
opportune moment to go and report to the Police Chief and supply all
the necessary information.
Thus the accused went past the deceased's home and
seeing no vehicle outside he turned back but not before trying to
turn some 300 to 400 metres ahead as the road is
rather narrow before reaching that point where a turn would be
It was while the accused was in the process of trying to
turn back at the
12 junction ahead that he saw a police vehicle driven by
the deceased approach in the
opposite direction. The accused stopped his vehicle and
stepped out trying to flag down the other vehicle which stopped some
after passing him and reversed towards where the accused was
The accused asked the driver about the album and how it
got to be in his house. The deceased/driver just looked and giggled.
aspect of the matter chimes in with the version of PW1 who said
when so confronted by the accused the deceased said nothing but
to be laughing. As stated earlier and in line with the defence
being tried to be raised taken along with the background to the
scenario this cannot be lost to the keen attention of the
The accused said he felt so infuriated at this
particular juncture that he asked the deceased a second time "where
is my daughter?"
Thereafter he says he only remembers cocking
the gun and as his mind went hazy he doesn't recall what happened. He
the passenger who was with the deceased opening the
passenger door and going out through it. He says he hazily remembers
first shot and nothing else afterwards.
13 The next thing that he recalls was when he called to
PW1 to proceed with him
to the Charge office because, as he says, it dawned on
him then that the shot he remembered firing mut have caused an
PW1 did not respond, at least affirmatively to the
accused's request. Thereupon the accused went to his own vehicle and
turn himself in to the police at Charge office. He also
handed his firearm to the police in the same instance.
The deceased's age at the time was estimated at
somewhere in the thirties while the accused's daughter who was in
love with the deceased,
a married man for that matter, was just
The accused had been having problems with this type of
liaison developing and growing between his daughter of tender years
Around the first half of the year in question he had
leamt from his neighbour that during his numerous absences the
to park his vehicle in front of the accused's premises
outside the gate in company of the accused's daughter.
This disturbed the accused very much indeed because he
considered this as
14 holding nothing at all for his daughter's future
which he, as a parent, was taking all the trouble to make secure by
at school and hoping she would make a success of his
efforts in that regard.
Another prior incident which kept the accused in
unwholesome anguish and anxiety regarding his daughter's liaison with
is that he had kept his daughter at a boarding school
far away from Thaba Tseka and possibly beyond the immediate and
with the deceased. Since the accused was living far
away from this school he made arrangements with his elder brother
stays at Maseru West to accommodate the daughter on
home-weekends spent away from the boarding school.
But one afternoon when the accused had travelled to
Maseru and had proceeded to Maseru West to see his daughter and
he saw a vehicle parked on the road outside
MohlalefTs gate. When he pulled close he saw his daughter talking to
a driver who sped
his vehicle away as the accused came closer. The
accused asked the daughter who the driver was and she lied and said
it was some
stranger asking for directions. However something had
told the accused that the daughter couldn't have been truthful for
nervous. The accused decided
15 to pick up the spoor and follow the vehicle which had
by then disappeared from view.
But the accused had read the reaction of someone, a
possible passenger or co-traveller with the deceased who seemed
the deceased leaving him so suddenly and without
explanation regarding why the precipitous hurry! Indeed the accused's
paid off because he found the deceased's vehicle waiting
around the comer apparently expecting his would-be passenger to
embark. Thereupon the accused approached him and appealed
to him to let his daughter who was under age be for she had no career
the deceased had his. The deceased expressed his apology.
The accused was beside himself with agony because the
incident had occurred exactly where he thought his daughter was safe
clutches of an old and cunning philanderer devoid of morals.
The accused subsequently reported the matter to Police Chief Marabe
Penane who was stationed at Thaba Tseka.
The other incident concerned a telephone call from the
accused's nephew of tender age Taunyane who phoned from Maseru saying
to visit the accused at Thaba Tseka. Taunyane asked to talk
to the accused's daughter. Surprise, surprise - There and then the
daughter was in conversation with the deceased!
16 Taunyane's mother questioned the accused complaining
that she couldn't figure out
how Taunyane had become friends with the deceased.
Taunyane was at the time aged seventeen.
All this background serves to show continuous thwarting
of every effort the accused was making to discourage the growth of
liaison between his daughter and the deceased. The
attendant frustration is understandable that the accused felt piqued
by the realisation that he was fighting a losing battle.
Suspicion and anxiety were feeding on his mind on an ongoing basis.
anxiety was not eased by the realisation that his teenage nephew
was also being absorbed and swept into the vortex of an unseemly
association to which the deceased had constituted himself the bedrock
The accused's anxiety increased as his daughter's
performance at school slumped dramatically in direct response to the
flourish of her love affair with the deceased. She was
among the group who breached the school discipline and had to be
other culprits by their respective parents at the behest
of a mother superior who was the principal of the school. The
of the love affair did not relent nor did the accused's
distress and frustration on the other hand.
17 Prior to the start of the affair between the deceased
and the accused's daughter
the accused had no problem with his daughter. In fact
her school progress was far above average.
The accused confessed to being a religious man, a
Presbyterian of the Lesotho Evangelical Church. His childhood was
moulded on strict
moral code and almost stifling puritanical lines.
His parents' and his own attitude towards extra-marital affairs is
and of total intolerance. Yet he himself encountered
a problem in 1988/89 when he was in the United States of America
his Masters Degree. On his return home he found his wife
pregnant by another man. Without telling any member of his family he
a unilateral decision that that child would be bom elsewhere
than at his home. The accused felt very distressed about this. As a
result the relationship between him and his wife plus his in-laws has
been strained. However he hasn't divorced his wife for this
unpardoned act of infidelity.
Prior to the accused cocking his firearm he said he
recalled the deceased after giggling; dropping his left hand from the
wheel and that the vehicle started moving while gun fire
also took place though he says he can't recall which came first.
18 Under cross-examination the accused said that he had
no control of the
circumstances that led to the shooting, in reply to the
question put to him that he seemed to have channelled his anger to
person. He conceded that his anger was channelled at the
wrong person. The reason he gave for this was that he had no control
his actions altogether.
He indicated that the giggling prompted the shooting. He
stressed that this was compounded by two further factors namely the
indifference to the question put to him plus the black out
that suddenly seized the accused.
The accused said the lowering by the deceased of left
hand from the steering wheel was perceived as a possible act of
as an aggressive movement.
The accused's story as to what happened after the
cocking of the gun is bedevilled by his inability to recall what
happened due to
the so-called black out. He merely repeats that he
recalls the cocking of the gun and the fact that PW1 made to open the
rush out through it "but a second thereafter, then the
firing took place, and any other subsequent firing that took place
I have no remembrance of it".
An explanation of the sort of scenario that consists in
a black-out is to be found
from the evidence of DW2 Mrs Redelinghuys.
Indeed Miss Mokitimi for the Crown put a question that
is very much pertinent when she asked the accused to explain what a
black out means to him, and when she further indicated that
if the black-out is complete then it means the sufferer cannot recall
or hear anything. The accused realising that the answer given earlier
could lead to some awkward conclusions regarding the inconceivable
state of affairs wherein one perceives things despite being in
complete black-out improved his answer by indicating that he
a black-out to be a process that finally leads to a
complete stage. Thus he explained that events that he testified to
prior to shooting
were stages in the process towards a complete
black-out. Thus he indicated that the final stage was the one of
which he had no knowledge
or recollection of any other hearing after
the first shot. Any feeling that the accused's story is an
afterthought, that improves
as the case proceeds along, is dispelled
by the fact that what seems to be an improved version coincides with
contents of the expert's
report which was prepared and concluded long
before the accused gave his own evidence.
He said he came out of the complete black-out when he
spoke to the passenger
The evidence at Preparatory Examination even by PW1 in
this Court revealed a somewhat astonishing feature of a man in the
the accused who after shooting PW1 expected him to go along
with PW1 to the Charge office or whatever place. It is inconceivable
that ordinarily if the accused was aware he had shot PW1 for some
reason completely obscure to PW1 that the latter could willingly
closer to the accused who was even then still holding his firearm. It
would seem therefore that there is some credence to the
the accused had been into a black-out when he fired several shots
that he did unless he could be said to be an actor
playing an act
with which to bamboozle courts of law at subsequent hearing when he
embarked on this extraordinary move to invite
PW1 to accompany him to
the Charge office in the circumstances outlined immediately above.
In the same breath I would reject therefore as false the
evidence by the accused that when he spoke to PW1 and invite him to
him to the Charge office PW1 was behind the van next to
which the accused had come. Under such circumstances good sense tells
that PW1 would avoid the accused like a plague. It would be most
imprudent of PW1 that after putting a fair amount of distance
21 between himself and the assailant who shot at him for
no apparent reason would
squander the safety granted by the 50 metres distance
from his assailant and risk being shot at again, perhaps even fatally
because he willingly cast caution to the winds. The
accused's further attempt to give substance to his implausible story
could very well have responded to his call unaware of the
injury he had sustained because PW1 even at Preparatory examination
he felt the injury much later truly strains credulity.
Indeed the learned Counsel for the Crown ran the
Preparatory Examination text to earth where it states of PW1 "I
the passenger door. I had taken cover. Whilst I went out
I felt a bullet pierce my buttock". This clearly shows that PW1
already been aware of the injury he had sustained before the
accused called to him to go along with him to the Charge office. This
is patently contrary to what the accused would have the Court
believe. This further heightens the ridiculousness of the accused's
story that despite conceding the accuracy and correctness of the text
as reflected at Preparatory Examination he nonetheless maintains
had braved all the trauma he had just had and come closer to him to
be party to that unilateral conversation.
22 A point of some nicety revolves around the words the
accused is alleged to
have uttered after shooting at the deceased namely that
"I told you I will kill you". In an attempt to show either
the accused never uttered those words or that if he did he
should not be taken to have meant that he intended killing the
Mr Jefferys in re-examination put the pertinent question
whether the last time before the incident when the accused met with
deceased, the accused ever told the deceased that he would kill
him. To this the accused replied; no.
Indeed the deceased having been a policeman who should
know his rights under the law when a serious threat like the one in
was made earlier as it is implied, would have had nothing to
stop him from making a formal complaint against the man threatening
criminal act regarding his life.
The fact that the deceased took no action when this
threat was made as implicitly suggested in the text that it was made
the killing can only mean that when the words uttered by the
accused were heard by PW1 they were no more than an expression of a
victor's bravado. On many occasions it has been found that the
utterers of similar expressions make them without meaning that
23 warning or intimation had ever been made at all.
The Court read the report of DW2 Mrs Redelinghuys the
2nd defence witness.
DW2 is a qualified Psychologist holding a degree in
primary education and an Hons Degree in Education Psychology. She
also holds a
Masters Degree in Educational Psychology. She is trained
and is specialising in Forensic Psychology.
DW2 was previously requested and she complied to consult
with the accused and conduct tests necessary for the establishment of
accused's psychological profile at the time of the shooting.
DW2 testified that she accordingly saw the accused on
20th October 1998. She subjected the accused to a battery
of tests prescribed and adopted for South African condition and used
The accused's intelligibility proved average; meaning
according to DW2, that he is usually in control of life situations.
the accused's personality. The tests revealed the accused
as having a notably low decree of anxiety and that he is a stable and
person who feels reasonably self-assured, complacent
The witness told the Court that the accused portrays a
moderately high degree of social sophistication with a well developed
into the motives of others. She indicated that the accused
has a high level of motivation to persevere with the problem until it
is solved; and that he has no problem in associating with others and
no difficulty forming inter-personal relationships; and that
therefore quite gullible and ready to accept and trust people in
general. He does not show symptoms relating to aggressive
The next test conducted is one referred to as Personal
Harm Social and Formal (PHSF) relations questionnaire.
The witness took the Court through this and subsequent
other tests all of which tended to put the accused in socially and
The witness related the interview she had with the
accused which furnished background to the incident that gave birth to
I have already in some ways touched on those when dealing
with the accused's own evidence. They relate to the
25 accused's strict upbringing based on Christian
principles and the effect his daughter's
downward trend in performance at school had on him.
The witness indicated that all these forms of stressful
factors resulted in the accused undergoing decompensation otherwise
as automatism resulting from the lowering of integrated
functioning and eventually a possible breakdown of a person.
The witness told the Court that a prolonged stress may
lead to pathological over-responsiveness to stressors. She indicated
can take different forms. They can be environmental
stress. She said stressor can be people or different things.
She indicated that a perception of threat to the
individual who labours under this form of thing, brings an increased
competitive processes making it impossible or difficult
for the individual to see the situation objectively or to perceive
of alternatives actually available.
The witness also indicated that stressors build up to a
point where the situation
is triggered off as in the case where one waves a read
flag in front of a bull and the
DW2 told the Court that personality decompensation under
excessive stress appears to follow a specific course. First there is
of the organism and mobilising of resources for coping
with the stressor.
The witness took the Court through her prepared report
and indicated that the accused falls neatly into the category of a
at the time of the offences charged was a subject of
decompensation. Mr Jefferys was quick to utilise this ready made
was brought to his mill and in arguments submitted that it
is clear the accused was in a state of automatism therefore cannot be
held criminally liable.
Throughout DW2's testimony the Court was on its guard
lest it be blinded with science.
The learned Counsel for the Crown in cross-examination
of this witness raised questions whose answers were largely
in no way enabling the Crown to gain a toe-in Into
the edifice of defence within which the accused found himself
Thus under cross-examination DW2 went further to explain
what decompensation is. She elucidated that the person suffers from
fatigue and his thinking ability and emotional ability
are disintegrated as well as his personality. She added that the
and thought process become disorganised and therefore
amnesia can be the result of that.
DW2 indicated that it is not possible to tell the exact
length of time it takes for
the removal of stress factor. However she said temporary
amnesia usually starts quickly and ends quickly.
DW2 stressed that the stress may have influence on the
accused but not to the extent of reaching uncontrolled violent
he is trying not to do what is in contrast with his
characteristic behaviour. She emphasised that the stress to have
effect has to
build up as well as the personality functioning
lowering gradually till the subject is at some point triggered. She
is not just effected by the presence of stressor but
by a lot of stress.
28 At the close of the defence case Miss Mokitimi as
I stated earlier indicated that
the Crown was no longer going to call an expert witness
in rebuttal of factors raised by the defence in favour of the
She accordingly argued that the accused was acting under
provocation in which event then he should be found guilty of Culpable
in Count I in accordance with provisions of Criminal Law
(Homicide Amendment) Proclamation 42 of 1949. Further that because
Proclamation is confined to murder charges only then therefore
the accused should at least be convicted of assault with intent to
grievous bodily harm in Count II.
The Crown in motivating its plea to the Court reposed
its faith on the authority of S vs Henry 1999(1) SA CR 13 where the
that it is trite law that a cognitive or voluntary act is
an essential element of criminal responsibility, and therefore where
commission of such an act was put in issue on the ground that the
absence of voluntariness was attributable to a cause other than
mental pathology, the onus was on the state to establish that element
beyond reasonable doubt.
The Court reminds itself in parenthesis, that DW2 said
that the accused is not
29 pathological in other words he is not mentally sick.
Miss Mokitimi went further to elaborate on the gist of
the authority of Henry above and indicated that however the state is
be assisted, in discharging this onus relating to pathology
by the natural inference that, in the absence of exceptional
a sane person who engaged in conduct which would
ordinarily give rise to criminal liability did so consciously and
sense dictated, it was submitted, that before
this inference would be disturbed a proper basis had to be laid,
which was sufficiently
cogent and compelling to raise a reasonable
doubt as to the voluntary nature of the alleged actus reus, if
involuntary, that this
was attributable to some cause other than
Miss Mokitimi accordingly and I would say correctly
referred to Henry as a departure from the old South African approach
that this authority is more in line with the answer
that was provided by the Transkienian Code which in turn compared
with provisions of the Criminal Law (Homicide Amendment)
Proclamation 42/1949 insofar as relates to provocation situation.
The learned Counsel cited section 3(1) (which says)
"A person who -
unlawfully kills another under circumstances which but
for theprovisions of this section would constitute murder; and
does the act which causes death in the heat of passion
caused by suddenprovocation as hereinafter defined and before
there is time for hispassion to cool,
is guilty of culpable homicide only."
It is significant that this law relates to a situation
where death has occurred and confines itself to the reduction of a
to a conviction for Culpable homicide and makes no
provision for reduction of any other charges from one kind to a
on to a lesser offence.
It is thus obvious why Mr Jefferys fought shy of
accepting what otherwise would seem to be a generous offer from the
With regard to the facts Jefferys argued that the
version of the accused as corroborated by those persons who made
to him and who would have been led in evidence, has
been accepted by the Crown.
He submitted that the Psychologist's evidence was
uncontradicted by any form
31 of expert evidence which might have been led by the
Crown and consequently urged
the Court to accept it in its entirety.
I may just highlight even at the cost of repetition the
neat outline of the evidence given by DW2 with regard to the accused.
that he is a stable and well adjusted person
that he is more inclined to give consideration to
rational arguments thanact on emotion
that he is considerably principled and controlled by a
strong sense ofduty
that he is moralistic and rule-bound as well as
controlled and sociallyprecise
that he has the necessary coping skills to handle
life's situations. He isnot an aggressive person and is in
control of his emotions and actions.
that he is a family man
that he shows remorse for the acts he committed as also
symptoms ofdepression and disappointment in himself
(h) that he is a religious person.
I may add that if his reaction after the shooting was
not as immediate as it was when he called to PW1 to accompany him to
office one could have been tempted to think that his was a
put-on act. But as I said the tenor of events supported
as it is by witnesses who were around including PW1
himself dispels any lingering
feeling that his claim that he was in a black-out is
without substance. Moreover existence of a black-out as known in the
science has been adequately dealt with by DW2.
Thus Mr Jefferys drove the point home that on the basis
of DW2's tests and findings the accused had suffered from
automatism at the time of the shooting and
consequently was not accountable for his actions. This means that he
could not have formed
the intent as a consequence of a temporary
Learned Counsel submitted that this result came about as
a consequence of extreme stress which DW2 identified as having
due to the accused's daughter's affair, as also that of his
own wife. His strong religious convictions and high moral character
the breakdown which he suffered.
Learned Counsel urged the Court to pay heed to the
evidence which indicated that if the stress continues after the
stage has been reached the individual is often able to
find some means of dealing with it and so resists
33 psychological disintegration. But during the late
phases of this stage the individual
tends to become rigid and to cling to previously
developed defences rather than trying to re-evaluate the stress
situation and work
out more adaptive coping patterns.
In the face of continued excessive stress, the
individual resources are depleted and the coping patterns called
forth in the stage
for resistance begin to fail. Mr Jefferys referred
the Court to measures that the accused adopted in an attempt to
diffuse the situation
and stop the affair as highlighted in DW2's
report at page 7.
In the absence of any evidence to the contrary the Court
found itself obliged to accept DW2's scientific evidence that
or decompensation is generally found to exhibit itself in
family matters i.e. parent-child, or husband-wife
Learned Counsel endorsed the expert's conclusion that
the accused was therefore not criminally liable for killing the
The Court was referred to S vs Nursingh 1995(2) SACR
331(1) for recognition in various cases and internationally of
a defence. My perusal of
34 available material in this Kingdom has not enabled me
to find a case where sane
automatism was either raised as a defence or pleaded
successfully as such.
However the authority of S vs Nursingh above is very
instructive on the subject and its implications where successfully
The head note reads -
The accused, a university student, was charged with
three counts of murder, it being alleged that he had shot and killed
his grandfather and his grandmother. It was alleged that
the accused fired a 9 mm pistol at his mother and maternal
that three shots struck his mother, and grandfather
and four shots his grandmother. The defence put in issue the
ability or capacity at the time of the shooting to
know what he was doing and whether what he was doing was wrongful.
It was contended on behalf of the accused that by reason
of his peculiar family circumstances and upbringing, he had a
make-up which pre-disposed him to violent emotional
reaction in the event of other events occurring that would push that
into a state of eruption, i.e. that when those
35 occurred to trigger off this disruption on his mind,
his mind would become so clouded
by an emotional storm that seized him that he would not
have the mental ability to distinguish between right and wrong and to
in accordance with that insight.
Evidence was led of prolonged sexual abuse by his
Expert evidence was led from a psychiatrist and a
psychologist who had both examined the accused and were of the
opinion that what
had happened on the evening in question was a
singular combination of circumstances that faced the accused, with
of make-up, with a sudden and immediate threat to
him of devastating proportions. Occurring in the context of the
history of abuse,
it triggered off a state of altered consciousness
which manifested itself in a markedly reduced or even a wholly
of normality, with accompanying loss of judgment
and self-control The resulting mental state was identified by the
a separation of intellect and emotion with temporary
destruction of the intellect. This is a syndrome which is well-known
in contemporary psychiatric literature and research.
The psychologist identified the situation as a known and
36 trauma which occurs in the context of a particular
relationship of people like
husband and wife or parent and child, when a person with
a particular emotional vulnerability is incited by some stimulus,
in an overwhelming of the normal psychic equilibrium by an
all-consuming rage, and a consequent disruption and displacement of
Both experts explained that such an occurrence was not a
pathological one in that it does not stem from a mental disorder in
sense of the word. It is a non-recurring event,
particularly if the cause of it was thereby removed. During its
motor movements of the body take place with
Thus Mr Jefferys pointed out that the Court considered
this to be a case of sane Automatism. He submitted that what the
Court in Nursingh
above found compares very well with the situation
obtaining before the Court in the instant case. Learned Counsel thus
drew the Court's
attention to the fact that a particular incident
triggered off a state of altered consciousness which manifested
itself in a markedly
reduced, or even wholly incomplete awareness of
normality with accompanying loss of judgment and self-control. I
accept that this
state of affairs is truly reflected in the instant
37 Mr Jefferys laid much stock by the fact that experts
in Nursingh gave evidence
showing that ordinary motor movements of the body can
take place with normal efficiency and that the syndrome is
an inability to remember what happened, although
that particular aspect is simply the result of the fact that the
ability of the mind is not registering during the
period of the upset and, therefore, there are no recollections to
recall, or it
is registering imperfectly in fragments so there may be
patches of recollection. Also because the aggressive behaviour in
to the stimulus is alien to the person concerned, it is
further characterised by subsequent response to awareness of the deed
a fearful and guilt-ridden reaction.
I accept that indeed Nursingh is very much on all fours
with the instant case in that we are dealing with automatism
the context of
(a) parent and child relationship; a family
relationship which has the added flavour of fouled husband and wife
The Court is alive to the existence of on-going stress
resulting from the relationship which the deceased had with the
DW2 fully debated this in the context of the
accused's high moral character and repugnance towards extra-marital
or pre-marital sex.
The trigger in the instant case was the deceased's
giggling at theaccused's anxious inquiries regarding the album
and the whereabouts ofhis daughter.
The accused does not recall the entire shooting but
does so imperfectlyand in fragments. This is adequately
manifested by his expectation thatPW1 would comply with the
request to accompany him to the Chargeoffice. The accused
couldn't have entertained such expectation if hewas aware when
he was shooting at PW1 that he had done a thing whichcould not
have made the latter willingly accept the invitation toaccompany
the accused anywhere more especially when the accused wasstill
holding the firearm.
Immediately after the shooting the accused's mental
awareness was fullyrestored and he knew precisely what must have
happened with regard to
the deceased in particular.
I was referred to S vs Wiid 1990(1) SA CR 561 (A)
written in Afrikaanse a language with which this Court is not
But the head-note which is in English shows that : where
the defence of a temporary non-pathological incapacity is raised, (as
the instant case) the onus rests
39 on the State to rebut it, but a foundation should be
laid in the evidence for the raising of the defence. If, on the
there is a reasonable doubt whether the accused, at the
time of the commission of the office, had criminal capacity, he or
be given the benefit of that doubt.
I may just indicate that while a good foundation was
undeniably laid by the defence for the claim of non-pathological
in the instant case, it was not rebutted at all. I
should hasten to indicate that such failure is not attributable to
of the Crown but to the fact that the fortress
hemmed round the defence proved impenetrable.
Wild shows that indeed the accused had had to appeal
before he could be acquitted after the principles which are
applicable when non-pathological
defence is raised were restated by
the appeal Court which found that the accused-appellant who had shot
and killed her husband was
entitled to a benefit of doubt because it
was doubtful whether at the time of the shooting she had the
necessary criminal capacity.
In S vs Stellmacher 1983(2) SWA 181, the court found it
inappropriate to convict the accused suffering from mental illness or
defect as the accused
40 suffered temporary mental confusion which was
attributable, not to mental
abnormality but external stimuli. The accused was
accordingly found not guilty and discharged as the evidence had not
a basis for reliance upon mental illness or defect, but
in fact upon non-accountability.
I may just conclude by saying that the authority of
Nursingh represents a wholesome recognition of an aspect of the law
that has been
enriched by the advance in science for the benefit of
accused persons who have committed offences for which they are
The recognition that their criminal
unaccountability is total fills a lacuna into which many previously
either suffered death by
hanging, long terms of imprisonment or
confinement in mental institutions designed for offenders certified
In CRI/T/27/94 Rex vs Nkhahle Mothobi (unreported) it
was thanks to the latest developments in diagnosing diseases of the
the accused escaped either of the two above categories
above, after the doctor who had examined him after two postponements
case to enable him to do so had testified that he was fit to
stand trial despite signs that the Court observed to be inconsistent
with sanity in the accused. After the third postponement the doctor
chanced on the rare and latest in
41 contemporary literature on the subject which
satisfied him that the accused was
certifiably insane by a wide range of fifty-one points
in the graduation or calibration of points where thirty-one points
the subject to be certifiable as insane and therefore not fit
to stand trial.
In Henry above unlike in the instant case the state
secured its own expert witness and the judge believed the state's
expert and rejected
the defence's expert.
In an attempt to maintain a balance between the Crown's
case and the defence's case I find that on its own even without
and weaknesses in the Crown's case the strength of the
defence case is sufficient to sustain the accused's acquittal without
for this verdict on the tenuous benefit of doubt usually
granted accused persons on basis of legal technicalities.
The accused is found not criminally accountable for the
offences charged and is therefore acquitted and discharged in both
But as a safety measure for the protection of the
community his firearm is forfeited to the Crown and the accused is
to consult his psychologist
with a view to undergoing some therapy for as long as
that expert deems it necessary.
I derive some comfort from DW2's report and evidence
that the disturbance in the
accused's psychic equilibrium is not pathological and
that it is a non-recurring event. My assessor agrees
J U D G E 8th May, 2000
For Crown : Miss Mokitimi For Defence : Mr Jefferys
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law